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SEC-164(1) of the Criminal Procedure Code, 1973 states that “Any
metropolitan magistrate or judicial magistrate may, whether or not he has
jurisdiction in the case, record any confession or confession made to him in
the course of an investigation under this chapter or under any other law for
the time being in force, or at any time afterwards before the commencement of
the inquiry or trial:

Provided
that no confession shall be recorded by the police officer on whom any power of
magistrate has been conferred under any law for the time in force.

Here , the word
“confession” is not taken in by the definition of “evidence” under Section 3 of
the Indian Evidence Act, 1872 it can fall under the expression “matters”
referred to in the definition of the word “proved” in Section 3 of the Evidence
Act . Thus, “confession”, “notings” made by the presiding judge upon the local
inspection, “material objects” etc are covered by the said expression
“matters”. A confession is admissible without examining the magistrate who
recorded the same. If the confession is not in conformity with law, even the
examination of the magistrate will not cure the illegality.

EVIDENTIARY
VALUE OF CONFESSION

Confession
or statement under Section 164 CrPC is not a piece of substantive evidence and
it’s only use(as in the case of a First Information statement under Section 154
of CrPC) is to contradict or corroborate the maker. The contradiction can be elicited
by having recourse to Section 145 of the Evidence Act. Therefore, a confession
is ordinarily admissible in evidence. It is a relevant fact, it can be acted
upon . Under certain circumstances, it can form the basis for a conviction. A
Confession, judicial or extra- judicial if found to have been voluntarily made
can form the basis of conviction of the accused.

THE
RELEVANCE OF RETRACTED CONFESSION

Merely,
because the confession was retracted later, it does not mean that the
confession was not voluntary in nature. The issue as to whether the accused was
willing to give confession voluntarily or not is to be determined from his
mental state at the time when he gave the confession.

It is not
the law that once a confession is retracted the court should presume that the
confession is tainted. A court may take into account the retracted confession
but it must look for the reasons for the making of the confession as well as
for it’s retraction and must weigh the two to determine whether the retraction
affect the voluntary nature of the confession or not. If the court is satisfied
that it was retracted on account of an afterthought or advise ,the retraction may
not weigh with the court.

LEGAL
STATUS UNDER THE EVIDENCE ACT OF A “CONFESSION” OR “STATEMENT” RECORDED UNDER
SECTION 164 OF CrPC

It is a public document under Section 74 of the Evidence Act as was
stated in the case- State of Madras v. G. Krishna MANU/TN/0163/1961.

Victim
or witness to be sponsored by the police – A person who is neither an accused nor
sponsored by the police has no locus standi to apply to the magistrate to
record his statement under Section 164 CrPC. This is because the magistrate
should not be burdened with the additional task of recording the statements of sundry.

COMPULSORY
RECORDING OF STATEMENT IN CERTAIN CASES

In the case
of certain erotic offences against women as enumerated in Section 164(5A)a
there is a statutory obligation on the judicial magistrate to record the
statement of the victim. If such victim happens to be temporarily or
permanently mentally or physically disabled, the magistrate is obliged to take
the assistance of an interpreter or special educator for recording the victim’s
statement which has also be videographed. Sub-section (5A) (b) treats such
statement to be “chief examination” dispensing with the need for further chief
examination during trial.

CONCLUSION

In respect
of those cases, covered by sub-section (5A) (b) of Section 164 of CrPC the statement of persons suffering from the
disability referred to therein, will have to be treated as substantive evidence
which, of course can attain the status of acceptable evidence only when an
opportunity to test the same by cross-examination is given.

I am personally of the view that a similar privilege could have been extended in the matter of recording of confession by accused persons suffering from any such disability, since until proved guilty they are also person who are to be presumed to be in

For more
detailed analysis of the Indian Evidence Act, 1872 please subscribe to our
course https://www.lawskills.in/Tutorial/Lecture titled
Evidence Act: An Interdisciplinary Approach available on www.lawskills.in. The same
will provide you with an indepth understanding of the Act. This course will
help you understand the rules provided in our statute and to determine the
nature of information that can be presented during legal proceedings.